Keller v. Pringle

Brandon Keller, Petitioner, v. Chad Pringle, Warden, Respondent.

Case No. 3:15-cv-107

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NORTH DAKOTA

June 27, 2016

REPORT AND RECOMMENDATION

Brandon Keller (Keller) petitioned for habeas relief under 28 U.S.C. § 2254. (Doc. #1). After preliminary review, the court ordered service on the respondent. (Doc. #3). The respondent moved to dismiss the habeas petition, (Doc. #7), and Keller has responded to that motion, (Doc. #12).

Summary of Recommendation

In his petition, Keller alleges that improper jury instructions resulted in him being convicted of two crimes which the North Dakota Supreme Court later held were incognizable. Specifically, he contends that the state district court violated his due process rights when it instructed the jury that Keller could be found guilty of conspiracy to commit, and attempt to commit, an unintentional murder—murder under circumstances manifesting an extreme indifference to the value of human life. Recent cases held both crimes were incognizable under North Dakota law, since extreme indifference murder is a general intent crime and both conspiracy to commit murder and attempted murder are specific intent crimes.

This court concludes, however, that Keller's claims concerning jury instructions are barred by the statute of limitations and that he is not entitled to equitable tolling of the one-year limitation period. The other claims Keller asserts are not cognizable in a federal habeas petition. Accordingly, Keller's petition for habeas relief should be dismissed.

Background

On December 12, 2003, a jury found Keller guilty of (1) conspiracy to commit murder, (2) attempted murder, and (3) reckless endangerment.¹ (Resp. Ex. #5; Resp. Ex. #6; Resp. Ex. #7). Keller appealed, and the North Dakota Supreme Court affirmed the criminal judgment on August 18, 2005. State v. Keller, 695 N.W.2d 703 (N.D. 2005).

On the attempted murder charge, the state district court instructed the jury on both intentional murder and extreme indifference murder: "A person is guilty of Attempted Murder if he either intentionally or knowingly attempts to cause the death of another human being; or if he willfully attempts to cause the death of a human being under circumstances manifesting extreme indifference to the value of human life." (Resp. Ex. #4, p. 11). Additionally, the state district court instructed the jury as to the essential elements of the attempted murder charge:

The burden of proof resting upon the State is satisfied—only if the evidence shows, beyond a reasonable doubt, the following essential elements of the offense charged:

That on or about the 2nd-3rd day of August, 2003, in BurleighCounty, North Dakota, the Defendant, Brandon Keller,

1. Attempted to cause the death of a Bismarck Police Officer intentionally or knowingly; or

2. Attempted to cause the death of a Bismarck Police Officer under circumstances manifesting extreme indifference to the value of human life.

Id. The attempted murder verdict form did not require the jury to specify whether its verdict was based on evidence of intentional murder or of extreme indifference murder. (Resp. Ex. #6).

On the conspiracy to commit murder charge, the state district court instructed the jury that "[a] person commits Criminal Conspiracy if that person agrees with one or more persons to engage in or cause conduct constituting an offense, and any one or more of those persons acts overtly to effect an objective of the conspiracy." (Resp. Ex. 4, p. 9). Additionally, the state district court instructed the jury as to the essential elements of conspiracy to commit murder:

The burden of proof resting upon the State is satisfied only if the evidence shows, beyond a reasonable doubt, the following essential elements of the offense charged that:

1. On or about the 1st day of July and the 31st day of July, 2003, in Burleigh County, North Dakota,

2. The Defendant, Brandon Keller,

3. Agreed with one or more persons to engage in or cause conduct which, in fact, constituted the offense of murder,

4. And any one or more persons performed the overt act of:

a. Obtaining weapons; or

b. Obtaining ammunition; or

c. Acquiring black clothing; or

d. Acquiring ski masks; or

e. Acquiring face paint.

Id. at 10. The conspiracy to commit murder verdict form, like the attempted murder verdict form, did not require the jury to specify whether its verdict was based on evidence of intentional murder or of extreme indifference murder. (Resp. Ex. #5).

On direct appeal, Keller alleged insufficiency of the evidence to support the conspiracy to commit murder and attempted murder convictions and that the district court erred in failing to instruct the jury on lesser included offenses. (Resp. Ex. #15). Keller's brief on direct appeal included the following statement regarding the jury instruction on attempted murder:

Keller objected to the trial court's jury instruction on the elements of the offense of attempted murder. Keller's objection was based upon the premise that it was erroneous for the court to instruct the jury on attempted murder by the commission of acts under circumstances manifesting extreme indifference to the value of human life because that would be, in effect, a contradiction in terms, namely, intentionally acting recklessly. The court declined to change its proposed instruction and the jury was given instructions on attempted murder as proposed by the trial court and advocated by the State.

Id. at 8 (internal citations omitted). In affirming Keller's convictions, the North Dakota Supreme Court did not address the contradictory language of the attempted murder instruction. The court, however, stated:

Under [N.D. Cent. Code §§ 12.1-12-01(a) and (b)] and the charges in this case, Keller was guilty of conspiracy to commit murder if he agreed with Sherman to intentionally or knowingly cause the death of another or to cause the death of another under circumstances manifesting extreme indifference to the value of human life, and if either Keller or Sherman committed an overt act in furtherance of that agreement.

State v. Keller, 695 N.W.2d 703, 712 (N.D. 2005). The court's decision, however, did not rest on that language. Rather, the court concluded that Keller was not entitled to lesser included offense instructions and that the evidence was sufficient to support Keller's convictions. Id. at 713-17.

Subsequent to Keller's convictions, the North Dakota Supreme Court decided three cases addressing the intent required to convict for conspiracy to commit murderand for attempted murder—State v. Borner, 836 N.W.2d 383 (N.D. 2013), Dominguez v. State, 840 N.W.2d 596 (N.D. 2013), and Coppage v. State, 843 N.W. 2d 291 (N.D. 2014). In Borner, the court interpreted the state's conspiracy statute and held that "conspiracy to commit murder requires a finding of intent to cause death and cannot be based on the theory of murder under N.D.C.C. § 12.1-16-01(1)(b), extreme indifference murder," since extreme indifference murder is unintentional. 836 N.W.2d at 386, 391. In Dominguez, the court interpreted the state's attempt statute and held that "attempted murder, under N.D.C.C. §§ 12.1-06-01 and 12.1-16-01(1)(b) [extreme indifference murder], is not a cognizable offense," since "attempt is a specific intent crime, requiring an intent to commit the underlying offense" and "[m]urder committed under circumstances manifesting an extreme indifference to the value of human life results in an unintentional death." 840 N.W.2d at 603. In Coppage, the court granted the petitioner post-conviction relief, concluding that the jury had found him guilty of an incognizable offense—attempted murder under circumstances manifesting an extreme indifference to the value of human life. 843 N.W. 2d at 303.

On May 19, 2014, after the North Dakota Supreme Court's decisions in Coppage, Dominguez, and Borner, Keller filed a motion to correct his sentence pursuant to North Dakota Rule of Criminal Procedure 35(a). (Resp. Ex. #18). Keller argued that his attempted murder conviction should be vacated, since the instructions allowed the jury to find him guilty of attempted murder under the extreme indifference statute. Id. In other words, he argued he might have been convicted of an incognizable offense. The state district court denied Keller's Rule 35 motion, finding that Rule 35 did not apply since Keller did not seek to correct an illegal sentence, but rather sought retroactiveapplication of subsequent North Dakota Supreme Court decisions to his case. (Resp. Ex. #20).

On August 8, 2014, Keller file a state post-conviction relief application, in which he argued that his conspiracy to commit and attempt to commit murder convictions should be vacated, since the jury could have found him guilty of incognizable offenses—conspiracy to commit murder and attempted murder under circumstances manifesting extreme indifference. (Resp. Ex. #22). The state district court dismissed the application as barred by the two-year limitation of North Dakota Century Code section 29-31.1-01(2). (Doc. #24). Keller appealed, and the North Dakota Supreme Court affirmed the state district court's order on statute of limitations grounds. Keller v. State, 869 N.W.2d 424 (N.D. 2015).

Under North Dakota Century Code section 29-32.1-01(2), Keller was required to file his post-conviction relief application within two years of his convictions becoming final. Keller did not assert that his application was filed within that two-year limitation period; rather, he contended that an exception to the state's statute of limitations applied. (Resp. Ex. #22, p. 3). Under North Dakota Century Code section 29-32.1-01(3)(a)(3), the state courts may consider otherwise untimely post-conviction relief applications if "[t]he petitioner asserts a new interpretation of federal or state constitutional or statutory law by either the United States supreme court or a North Dakota appellate court and the petitioner establishes that the...